1800978.17 j & r · 2018. 1. 29. · case number: 1800978/2017 6 14. following the meeting, on...

Case Number: 1800978/2017

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EMPLOYMENT TRIBUNALS Claimant Respondent Ms. W Jacob v Corporate Document Services Limited

PRELIMINARY HEARING

Heard at: Leeds On: 9 & 10 November 2017 Before: Employment Judge Wedderspoon (sitting alone) Appearance: For the Claimant: In Person For the Respondent: Miss S Gould, Solicitor

JUDGMENT

1. The Claimant’s complaint of unfair dismissal is not well founded and is dismissed.

2. The remedy hearing listed for 14th March 2018 is thereby vacated.

REASONS Claim and Issues 1. The Claimant brought a claim of unfair dismissal. It was agreed by the parties at

the commencement of the hearing that the relevant issues to be determined by

the Tribunal were as follows :-

1.1 What was the reason or if more than one the principal reason for the

Claimant’s dismissal;


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1.2 Did the Respondent have a redundancy situation within the meaning of

section 139 (1) ERA, in particular;

1.3 Did the Respondent cease or intend to cease to carry on the business for

the purposes of which the Claimant was employed by him, or

1.4 Did the Respondent’s need for the Claimant to carry out work as a

Journalist for the Codex publication under job title Deputy Editor MOD

Defence Science, cease or diminish or was expected to cease or

diminish.

1.5 Did the Respondent follow a fair dismissal procedure in compliance with

the Claimant’s contract of employment and ACAS guidelines,

1.6 Did the Respondent consult with the Claimant

1.7 Did the Respondent use a fair selection criteria

1.8 Did the Respondent take steps to avoid compulsory redundancy

1.9 Was the sole or principal reason for dismissal redundancy

1.10 Having regard to the reason shown by the Respondent and taking into

account the circumstances of the case including the Respondent’s size

administrative resources did they act reasonably or unreasonably in

treating redundancy as sufficient reason for dismissing her, if not

1.11 Would the Respondent still have dismissed following a fair procedure

(Polkey reduction)

1.12 Was the Claimant’s dismissal fair and lawful within the meaning of

section 98(2)(c) of the Employment Rights Act 1996.

2. The Tribunal heard evidence from the Respondent’s witnesses Mr. A. Carey,

Operations Manager; Miss. K. Riddell, H.R. Manager and Mr. F. Bailie, Chief

Executive Officer and from the Claimant and her witness, Lee Probert who

acted as her companion at a meeting on 4th January 2017. The Tribunal also

read the agreed witness statement of Dr. John Perry.

3. The Tribunal was provided with an agreed document bundle consisting of 319

pages. The Tribunal provided the Claimant on the morning of the first day the

opportunity to check whether the bundle was agreed and the Claimant

confirmed in the afternoon that the document bundle was agreed. At the end of

the hearing the Claimant suggested that she would have preferred other


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documents to have been included in the bundle. The Respondent argued that

the Claimant wished to embark on a fishing expedition and the relevant

documents were included in the hearing bundle. On the basis that the trial

bundle was agreed at the commencement of the hearing having given the

Claimant time to consider it (whilst the Tribunal read the witness statements

and papers), the Tribunal considered that this issue was raised too late in the

proceedings to be re-opened.

FACTS

4. From 28th January 2008, the Claimant was employed by the Respondent as a

journalist. From 23rd January 2009, the Claimant’s employment was assigned to

Williams Lea to carry out work as a journalist on behalf of the end client, the

Ministry of Justice, to produce a CODEX magazine and a blog. As a result the

Claimant received a significant increase in salary to reflect her increased hours

and additional responsibility.

5. By email dated 23rd August 2012, Steve Anderson of the Respondent sought to

attach a marketing role to the Claimant’s CODEX work. The Claimant resisted

this in her response by email the same day stating

“..I am employed solely on Defence Codex and this was the role I was

recruited for and have been working on for four years plus, you are

proposing some radical changes to my role, customary ways of working and

where I work..”

6. The Claimant sought an increase in her salary in 2014 which was rejected by

David Burton, Director of Print and Creative Services by letter dated 16th

September 2014. He stated

“Since joining the company you have been exclusively creating content for

Codex. your role remains exclusively creating content to Codex and the

decline in the number of issues of the magazine has been replaced with the

blog and online periodicals.”

7. By 2012, the Tribunal finds that the Claimant was employed by the Respondent

to exclusively work on CODEX. The Tribunal finds the Claimant to be an


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intelligent, competent individual who enjoyed working at a high level on the

CODEX project. The Claimant’s assigned work was monitored by the M.O.D.

editor for the CODEX magazine Dr. John Perry who signed off her work prior to

publication. The very last CODEX magazine was published in August 2016 and

the Claimant’s last published blog was produced on 16th August 2016. In

November 2016, the M.O.D. refused to pay the Respondent’s invoices for

CODEX.

8. On 6th December 2016 the Respondent was informed to cease work pending

investigations by the M.O.D. and on 15th December 2016 the CODEX contract

was terminated with 3 months.

9. On 22nd December 2016, the Claimant’s line manager Mr. Aidan Carey

informed the Claimant that the CODEX contract had been terminated and

arranged a redundancy consultation meeting on 4th January 2017.

10. At a meeting on 4th January 2017 between the Claimant and Mr. Carey (the

Claimant was accompanied by a family friend, Mr. Lee Probert) the Claimant

was informed that she would cease work on 13th March 2017. He stated that the

Claimant was at risk of redundancy and over the next two weeks he would seek

alternatives with the consultation period commencing from 4th January 2017.

The Claimant stated that she believed that Giles was keen for her blog to

continue. Mr. Carey told the Claimant that she should cease work on the project

in line with the instruction from Williams Lea. The Claimant stated that although

CDS had instructed her to cease work on the project she continued to receive

emails from the M.O.D. staff regarding the Blog/magazine. Mr. Carey requested

the Claimant to share the emails with him so to assist him to make a case that

the situation was ongoing. The Claimant stated that the contract had been a

lucrative one for the Respondent which Mr. Carey agreed.

11. The Claimant was placed in a pool of one person. The Respondent took this

decision because the Claimant was the sole person, in the Respondent’s

business, who worked on the CODEX contract. The Tribunal finds this was a

reasonable decision to make.


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12. The Tribunal finds that at the time of the meeting on 4th January 2017 the

Respondent had not received advice from its H.R. advisor about the process to

be adopted and Mr. Carey was poorly equipped to deal with the relevant

questions about the process raised by Mr. Probert. It was Mr. Probert who

raised the following issues including that TUPE may apply; the pre-determined

timeline and where the two weeks of consultation period had come from. Mr.

Carey stated he felt the two week period was reasonable and gave CDS an

opportunity to look for other roles for the Claimant. Mr. Probert also raised

whether the Claimant was going to be employed and paid by CDS until 13th

March when the project actually terminates. Mr. Carey declined to comment. It

is unsurprising that the Claimant felt unclear about the process to be adopted.

The Tribunal finds that Mr. Carey was out of this depth and lacked the

appropriate knowledge to properly advise the Claimant as to the procedure to

be adopted by the Respondent in this process. Mr. Carey also placed the

Claimant on garden leave at this stage and she was not required to attend the

office at this time.

13. Mr. Probert indicated on behalf of the Claimant that at the next meeting in two

weeks a number of matters should be clarified including the contractual

situation between Williams Lea and the MOD and whether a termination notice

has in fact been issued by the MOD to Williams Lea; whether two weeks was

the appropriate period for consultation in the circumstances; whether there were

any other opportunities for the Claimant in the Respondent’s business and what

training would be available to the Claimant. In response to Mr. Carey’s enquiry

whether the Claimant would be prepared to travel, the Claimant replied that she

would not role out options at this time. The Claimant requested that she be

permitted to speak to Justin MacKenzie at Williams Lea. Mr. Carey confirmed

he would make the offer to Justin when he spoke to him. The Tribunal finds it

was reasonable for the Respondent to make this offer and it would have been

extremely unusual for an employee to make direct contact with a third party.

Notes were made of the meeting on 4th January 2017 which were sent and

agreed by the Claimant and her companion Mr. Probert.


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14. Following the meeting, on 5th January 2017 the Claimant emailed Mr. Carey.

The Claimant stated in this email that she would not rule out any role in any

location and her preference that the Respondent share any vacancies with her.

She restated her concern that a two week period was an insufficient time period

for her to be considered for redeployment. The Claimant raised a valid point

here; two weeks was too short for proper consultation to take place. She also

sought confirmation about her understanding of garden leave namely that she

was not permitted to carry out work for the MOD/Williams Lea; she was

required to monitor her emails and forward any to the Respondent concerning

this contract. She noted she may be contacted by Mr. Carey and offered for

other duties on temporary contracts.

15. Mr. Carey did follow up the Claimant’s queries about whether TUPE applied. In

response to three questions put by Mr. Carey to Justin MacKenzie, on 6th

January 2017 Mr. Mackenzie replied that

“the MOD instructed Williams Lea to give notice to terminate the

arrangement for Codex, not because the requirement was ending but

because the requirement isn’t in scope for the new contract. ..We only asked

Wendy to stop all work until Aidan was happy to accept invoices again there

is no reason why Wendy cant carry on during the notice period-after all, you

are invoicing MOD £8k per month for her services.”

16. Further Mr. MacKenzie expressly stated that he did not believe a meeting was

planned or necessary with the Claimant. By email dated 9th January 2017 Mr.

MacKenzie confirmed that the requirement for the Claimant’s services can not

carry on under the new contract after March and doesn’t under scope for the

next contract. On receipt of this email Mr. Carey emailed the Claimant and

informed her that Williams Lea wanted the Respondent to continue working on

the blog/magazine with immediate effect and attached a letter of the same date.

The letter confirmed that the Claimant was at risk of redundancy.

17. Following the departure of Dr. John Perry no-one was appointed to manage the

blog/magazine which subsequently resulted in Williams Lea refusing to sign off


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invoices until some clear structure had been arranged. He raised the fact that

the Respondent had been given 90 days notice of the termination of the

contract and stated that there would in effect be a 90 day period of consultation.

In his letter dated 9th January 2017, he set out a detailed chronology of events

from 30th November 2016 when Mr. MacKenzie raised the fact Aidan O’Mara

was concerned that nobody within the MOD had given financial authority for the

work to continue and that he could not sign off any more invoices. He also set

out his responses to the questions raised by the Claimant and Mr. Probert and

in particular stated that he would send details of any vacancies that arise

directly to the Claimant. All vacancies should be posted on the CDS website

and he provided a web link. He stated that to ensure all vacancies have been

included he had emailed managers in other locations seeking up to date

vacancies. He stated that the vacancies would be discussed at their next

meeting to establish suitability and provide the Claimant with an opportunity to

ask questions about them. He also stated should training be identified the

Company would support the Claimant. This letter contained the clarity that the

Claimant and Mr. Probert sought at the meeting on 4th January 2017 as to the

process to be adopted save for the TUPE issue. However at this time the

Respondent had insufficient information themselves about TUPE to fully inform

the Claimant.

18. By letter dated 16th January 2017 from Phil Quinlan, Operations Director

provided further information to the Claimant. He confirmed that the service

provided by the Respondent to Williams Lea would definitely cease; Williams

Lea was the client and not the MOD. He went onto state that the Claimant

remained at risk because of the current uncertainty of what the MOD propose

for the future of the blog/magazine. He stated once we are clear about this

position then we will be able to look at TUPE and whether it applies and if it

does what measures may be proposed. He sought to meet with the Claimant on

25th January 2017.

19. The proposed date was inconvenient to Mr. Probert and the Claimant requested

another meeting date. Mr. Quinlan refused to move the meeting on the basis

that the attendance of Mr. Probert was outside normal process (namely a


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companion was normally a trade union representative or work colleague and he

was neither). He also stressed the need to meet at regular intervals to keep the

Claimant updated and wanted to discuss suitable vacancies with the Claimant.

Mr. Probert was critical in his evidence about the Respondent’s refusal to move

the meeting to permit his attendance in the context that the Claimant was a

homeworker but the Tribunal finds it was reasonable for the Claimant to meet

on 25th January because this was the only date the managers of the

Respondent would be in Leeds together and to continue the consultation with

the Claimant.

20. It was also confirmed to the Claimant that Kirsten Riddell would be present to

answer any questions she may have about the consultation process, risk of

redundancy, alternative employment and TUPE. The Claimant expressed her

disappointment that her companion would be unable to attend the arranged

meeting but agreed to attend the meeting herself.

21. On 20th January 2017 Mr. Carey spoke to Justin MacKenzie and advised that

Giles Deacon, Defence Science and Technology, (contact at CODEX), did not

see the need to spend £8k per month on maintaining a blog. Mr. Carey was

given permission by Justin to speak to Giles directly. In an email of the same

date to Mr. Carey, Justin Mackenzie stated Giles had confirmed that they have

no intention to procure journalism services through the PVP contract with

Williams Lea and they have no intention to procure journalism or publishing

services under any future CCS contract. He said

“The service will finish on 13th March 2017 as per the cancellation notice on

13th December 2016.”

22. Mr. Carey followed this email up on 21st January 2017 requesting Mr.

MacKenzie to confirm whether the CODEX/blog will cease in any form be that

under other contract or internally. Mr. Mackenzie stated on 23rd January 2016

“as far as Giles is concerned the entire requirement is ending on 13th March-

he actually wanted to end the requirement immediately as he can’t see that

any activity as taken place over recent months..”.


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23. The meeting took place as arranged on 25th January 2017. The Claimant, Mr.

Carey, Mr. Quinlan and Kirsten Riddell, a HR professional were present. At this

meeting Kirsten Riddell had printed off job vacancies in the Respondent’s

organisation for the Claimant to consider. The Claimant also mentioned that

there were blogs on the administration site which she and Giles have access to.

The Claimant expressed her concern that a meeting with the MOD was

cancelled which she proposed to attend and speak to Giles. Kirsten informed

the Claimant that there was no choice because the Respondent had

instructions from the client (which is not the MOD) to stop it. The Tribunal

accepts that this was the case; it would be highly unusual for an employee to

meet with a third party and it was not unreasonable for the Respondent

employer not to insist on such a meeting.

24. Mr. Carey contacted Giles at the MOD on 26th January 2017 to obtain further

information about the future of the blog. He sought clarification as to whether

the blog/CODEX would cease from 13th March 2017 and whether it would

continue in any form. He said a member of staff whose sole role within CDS is

to work on the projects and that the Respondent had a legal obligation to seek

assurance that the work had ceased so there is no TUPE implication to

consider. He also sought guidance as to what the Claimant should produce until

13th March 2017.

25. On 26th January 2017 the Claimant wrote to Mr. Carey requesting further

information on two vacancies; media content manager and Business

Development Manager at Defence Support. The Claimant stated that she may

require retraining and enquired if she relocated whether she would retain her

present salary and other benefits plus adequate relocation expenses. Mr. Carey

followed up the Claimant’s enquiry about the orange county job with Tim

Barfoot but unfortunately this post had been filled.

26. On 1st February 2017 Aidan O’Mara from the MOD emailed Justin MacKenzie

stating that


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“..it has been decided that from immediate effect for no further journalism

services for CODEX including the blog will be required. Can you please

inform CDS of this decision and that all activities should now cease. Please

also inform CDS that the Defence Science (formerly CODEX) magazine

ceased publication in August 2015 and there is no intention for it to be

produced in future. The continuing use of the blog is under consideration.

However should it continue it would involve significantly reduced support, for

example it will not involve any submissions from industry nor the use of

professional journalists or photographer. It is MOD’s view that as the

magazine has ceased publication and the potential blog activities will not be

fundamentally the same as the activities currently carried out by the Deputy

Editor TUPE is not applicable..”

27. Mr. Carey on receipt of this email forwarded it to Ms. Riddell for consideration.

28. By email dated 2nd February 2017 the Claimant asked Mr. Carey about his

request to her to work as “normal”. She stated that as the magazine and blog

would cease in March it was unprofessional and misleading to encourage

people to undertake a considerable amount of work when she knows it will not

be used. Mr. Carey responded to the Claimant on the same date explaining the

delay in responding to the Claimant had been due to a failure of Williams

Lea/MOD to respond to a request to clarify their expectations of CDS between

now and 13th March 2017. He told the Claimant that it had been decided that

with immediate effect no further journalism services for CODEX including the

blog would be required. He therefore requested the Claimant not to contact

anyone at Defence Science or commission any more work. He stated Ms.

Riddell would be in contact. He told the Claimant the Californian post had been

filled and the other post which was based in Cheltenham had no relocation

package; the salary depended upon the experience relating to the personal

specification detailed on the job description.

29. By email dated 3rd February 2017 the Claimant requested further details of the

Defence Support role and enquired whether she would need further training.

Mr. Carey confirmed Ms. Riddell would deal with the Claimant’s queries.


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30. By letter dated 5th February 2017 Ms. Riddell informed the Claimant that

“If you wish to apply for the Business Development Manager Training

Services role within CDS Defence then we will inform Richard Bradley of

your interest. I am aware that Aidan has already explained that the role is

based in Cheltenham and that there is no relocation package. CDS Defence

provided a job description detailing the expectations of the role together with

a personal specification detailing the necessary skills and experience

required to fulfill such a role. Your salary will not remain the same but should

you be successful in any application then your salary will change to reflect

the position. With this particular position there is no set salary. Salary

agreed will depend on relevant skills and experience.”

32. She proposed a further meeting to take place on 14th February 2017. The

Claimant accepts that she did not express any interest in the CDS Defence role

in response to this letter.

33. By letter dated 9th February 2017 the Claimant wrote to Ms. Riddell and

complained she was being treated disrespectfully. She stated she did not

consider she was in a consultation process but rather a process that seeks to

terminate her employment as expeditiously as possible. She raised the fact that

TUPE may well apply and sought a negotiated settlement.

34. Ms. Riddell responded to the Claimant on 10th February 2017 and confirmed

that the Claimant was still under consultation; had not been served with notice

and the client had terminated the contract the Claimant had been working on for

the past 8 years with immediate effect. She stated that the MOD have stated

TUPE does not apply. She stated that the Respondent was not in a position to

consider settlement because there was no confirmation about TUPE. She

stated that the Claimant had been given all the vacancies within the Group and

she had showed an interest in a position in Cheltenham. Ms. Riddell contacted

Justin MacKenzie on 15th February 2017 detailing reasons why the Respondent

believed TUPE applied and requesting him to contact Aidan O’Mara. In the


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absence of a response, Ms. Riddell chased Mr. MacKenzie for an answer on

20th February. He replied on 21st February stating that it was with the MOD for

consideration. Ms. Riddell also contacted Aidan O’Mara on 27th February 2017

for a response on his view about the application of TUPE. The Tribunal finds

that the Respondent was making genuine and reasonable attempts to clarify the

potential TUPE situation. The Tribunal accepts that it was in the best interests

of both the Claimant and the Respondent to do so. Mr. Carey contacted the

Claimant on 27th February 2017 to confirm enquires were being made about

this issue.

35. By email dated 2nd March 2017 Aidan O’Mara stated that as all journalist

services were ceasing TUPE was not applicable. Ms. Riddell made the

Claimant aware of this by email dated 7th March 2017 and that the assurance of

Aidan O’Mara’s legal team was being sought. On 9th March 2017 Ms. Riddell

again contacted the Claimant and stated that she did not consider that Aidan

O’Mara had provided enough information as to whether the new proposed

activities were going to be fundamentally similar as those currently being

carried out. She warned the Claimant again that she may be redundant. She

proposed a further meeting on 14th March 2017. The Tribunal accepts that Ms.

Riddell was making genuine attempts to clarify the TUPE situation for the

benefit of the Claimant and the Respondent.

36. On 10th March 2017 Ms. Riddell sought further information from Mr. O’Mara as

a matter of urgency about the new proposed blog. Aidan O’Mara replied on 13th

March 2017 and stated

‘I can now inform you that it has been decided to cease publication of the

blog which has been dormant for some time..”

37. At the meeting on 14th March 2017 the Claimant, Mr. Carey and Ms. Riddell

were present. In the course of the meeting Ms. Riddell stated

“The position now is there are no other positions within the organisation at

the moment however have to put out another request for vacancies like I

gave you before a number of weeks ago. There are no other consultation


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going on at the moment so I have to put out vacancies now or potential.

People cannot recruit as of the end of last week until they have given them

to me and I have offered them to other people whether they are suitable or

not. It has to be within their capability or there is an element of training that

person could undertake within reason and providing it is not going to take

months to train then I will show them those.”

38. Ms. Riddell went on to say

“we haven’t any work for you. Yes you are being paid but there is nothing for

you to do. It is an awful position to be in but there isn’t even any work for you

to do in the office at the moment so until I get back to you when I hear back

about positions..I will try my hardest to find a position for you.”

39. By letter dated 24th March 2017 Aidan Carey confirmed that the Claimant’s

present role was redundant and that the Claimant was entitled to appeal against

this decision within 5 working days.

40. The Claimant appealed the decision to dismiss her in a detailed letter dated 29th

March 2017. The Claimant was critical of the consultation in the process and

her concern that the process was to prove she was redundant and to expedite

the process. The Claimant also raised her concerns that there was no obvious

and meaningful attempt to mitigate the redundancy or to identify alternatives;

insufficient regard as to the potential implications of TUPE and that she

believed she had been discriminated by reason of her age (this cause of action

is no longer pursued by the Claimant). She raised that she may pursue an

Employment Tribunal claim.

41. An appeal hearing was fixed for 7th April 2017 and Chaired by Fergus Bailie.

The Claimant was afforded an opportunity to put her concerns to Mr. Bailie. She

stated that she did not believe there was a genuine redundancy situation; she

was concerned that Mr. Carey thought she would be retiring; the meeting on 4th

January 2017 was poor with no agenda or detail given to the Claimant; it took

her companion rather than the Respondent to raise the issue of TUPE; she

should have been given an opportunity to have met with Giles Deacon (instead


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she was barred by Williams Lea); had she met Giles Deacon she believes that

she would have been able persuade him to keep the contract with CDS. The

Claimant also stated that she could do alternative work such as social media,

blogging and website publishing. She was also concerned that she felt that the

Respondent deliberately arranged meetings on dates her companion could not

attend ensuring she came alone. The Claimant also stated that Aidan claimed

he told the Claimant to speak to Richard Bradley about a role which was untrue.

In respect of the Defence Support role the Claimant was asked that when she

was told by the Respondent that there was no relocation package with this job,

did she express she was still interested in the job. The Claimant stated she

believed that it was ongoing and there was no continued effort from anyone at

CDS to give her updates about vacancies.

42. At the end of the meeting the Claimant enquired whether Employment Tribunal

papers should be served direct to Mr. Bailie. He confirmed they should be.

43. Mr. Bailie adjourned the appeal hearing and interviewed Kirsten Riddell, Phil

Quinlan and Aidan Carey. Their interviews appear in the trial bundle at pages

262 to 264. Kirsten Riddell stated that she made attempts to investigate

whether TUPE applied and the Claimant failed to apply for any of the vacant

roles. Mr. Quinlan stated that the client Williams Lea instructed him to cancel

the Claimant’s meeting with Giles Deacon. Mr. Carey stated that the Claimant’s

companion’s availability did not fall on convenient dates for meetings for the

Respondent. The Claimant was given an opportunity to bring someone else but

she declined to do so. He stated he tried to push the TUPE issue because it

was in both the Respondent’s and Claimant’s interests to do so. The Claimant

was given details of vacancies.

44. By letter dated 28th April 2017 Mr. Brailie informed the Claimant that he

dismissed her appeal. He stated the consultation was reasonable. He confirmed

that all vacancies across the company and the wide group were notified to the

Claimant during the consultation process. At the appeal hearing the Claimant

had confirmed that she did not apply for any positions which were presented.

He stated that the Respondent was not under an obligation to create a new role


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for the Claimant. He also set out a chronology of events setting out attempts by

the Respondent to clarify whether TUPE was applicable.

THE LAW

45. Redundancy can be a potentially fair reason for dismissal pursuant to section

98 (2)(c) of the Employment Rights Act 1996.

46. Redundancy is defined in section 139 of the Employment Rights Act 1996. It

states

“(1) For the purposes of this Act an employee who is dismissed shall be

taken to be dismissed by reason of redundancy if the dismissal is wholly or

mainly attributable to –

(a) the fact that his employer has ceased or intends to cease –

(i) to carry on the business for the purposes of which the employee was

employed by him or

(ii)to carry on that business in the place where the employee was so

employed or

(b) the fact that the requirements of that business –

(i)for employees to carry out work of a particular kind, or

(ii)for employees to carry out work of a particular kind in the place where

the employee was employed by the employer, have ceased or

diminished or are expected to cease or diminish.

47. Section 139 of the Employment Rights Act 1996 is a broad definition that covers

a myriad of situations including closure of a business, closure of an employee’s

workplace and a diminishing need for employees to do the available work. The

burden of proving the reason for dismissal lies with the Respondent.

48. In respect of the fairness of a dismissal for the reason of redundancy guidelines

were laid down in the case of Williams and ors v Compair Maxam Limited (1982) ICR 156 EAT that a reasonable employer might be expected to follow in

making redundancy dismissals. The EAT stressed that in determining the

question of reasonableness it was not for the Tribunal to impose its standards

and decide whether the employer should have behaved differently. Instead it


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had to ask whether the “dismissal lay within the range of conduct which a

reasonable employer could have adopted.” The factors suggested by the EAT

in the Compair Maxam case that a reasonable employer might be expected to

consider were

(a) whether employees were warned and consulted about the redundancy;

(b) whether any alternative work was available.

49. The House of Lords held in the case of Polkey v AE Dayton Services Limited (1988) ICR 142 where an employer failed to follow correct procedures it was

open to an employer to argue that a fair procedure would have been utterly

useless or futile and would have made no difference to the outcome of

dismissal.

50. The extent of the obligation to consider alternative employment for a redundant

employee was considered by the Court of Appeal in the case of Thomas and

Betts Manufacturing Limited v Harding (1980) IRLR 255. The Court held that

an employer should do what it can so far as is reasonable to seek alternative

work.

51. In the case of Polkey v A.E. Dayton Services Limited (1987) UKHL 8 it was

held that

“..the employer will normally not act reasonably unless he warns and

consults any employees affected or their representative adopts a fair basis

on which to select for redundancy and takes such steps as may be

reasonable to avoid or minimise redundancy by redeployment within his own

organisation..It is quite a different matter if the tribunal is able to conclude

that the employer himself at the time of dismissal acted reasonably in taking

the view that in the exceptional circumstances of the particular case the

procedural steps normally appropriate would have been futile could not have

altered the decision to dismiss and therefore could be dispensed with..”


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SUBMISSIONS

52. The Respondent provided a written submission. The Respondent relied upon

the fact that on 22nd December 2016 that the Claimant’s line manager Mr.

Carey informed her that the CODEX contract had been terminated and

arranged a consultation meeting for 4th January 2017. She was placed at risk of

redundancy and thereafter consultation meetings took place on 25th January

2017; 14th February 2017 and 14th March 2017. It was submitted that the

Respondent made reasonable attempts to clarify whether TUPE applied. The

Claimant was provided with vacancies but she failed to apply for any.

53. The Respondent submitted that there was a genuine redundancy situation

within the meaning of section 139 of the Employment Rights Act 1996 by

reason of the CODEX contract ending on 13th December 2016 so that the

Respondent’s need for the Claimant to carry out work as a journalist for the

CODEX publication under job title Deputy Editor MOD Defence Science,

ceased.

54. It was submitted that there was procedural fairness in the process and the

Claimant was kept informed and consulted with. The Respondent submitted

that they followed up the Claimant’s enquiries about the application of TUPE;

informed her about vacancies and taking account of the three limb Polkey test

the dismissal was fair.

55. The Claimant also provided a written submission. She submitted that the

Respondent failed to analyse her skills; had no up to date knowledge of her

skills and failed to provide training to her. She stated she was placed on garden

leave and prevented from meeting with Giles Deacon. She queried whether the

Respondent had foreseen the affect changes in budget and government policy

could have affected her employment.

56. She submitted there was a failure to consider objective, fair and consistent

selection for redundancy and she was simply placed in a pool of one and a

failure to consider a lower skill level elsewhere in the business. She submitted


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that she should have been alerted to vacancies earlier and it was untrue that

she was told to apply via a weblink for jobs; she understood Ms. Riddell and Mr.

Carey were dealing with this. The Claimant submitted that there was a lack of

transparency in the process.

57. She raised that she had not been given a fair opportunity to put her case. On

my enquiry the Claimant confirmed this criticism was aimed at the

Respondent’s process and was not aimed at the Tribunal process. She

submitted that the Respondent have not acted fairly.

CONCLUSIONS

58. The burden rests on the Respondent to establish the reason or if more than one

the principal reason for the Claimant’s dismissal and whether this was for an

admissible reason namely redundancy within the meaning of section 139 of the

Employment Rights Act 1996.

59. In December 2016 when Mr. Carey had been notified that the CODEX contract

had been terminated, the Claimant had been engaged on work for the client

Williams Lea for the Ministry of Justice to produce a magazine and blog. She

was the only person in the Respondent’s business carrying out this specialist

work. By August 2012 the Claimant was informing the Respondent that her

contract was to work solely for the MOD and she was resistant to carry out any

other work on behalf of the Respondent. The last CODEX magazine was

published in August 2016 and the last blog was produced by the Claimant on

16th August 2016.

60. The Tribunal finds on these facts that on receipt of the termination of the

CODEX contract in December 2016 the Claimant’s role was potentially

redundant because (within the meaning of section 139 (1) of the Employment

Rights Act 1996) the Respondent’s need for the Claimant to carry out work as a

Journalist for the Codex publication under job title Deputy Editor MOD Defence


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Science, ceased or diminished. In the circumstances I am satisfied that there

was a potential redundancy situation for the Claimant.

61. In respect of the procedure followed in this process, the Tribunal shares the

concerns of Mr. Probert that the meeting on 4th January 2017 was wholly

inadequate in informing this Claimant what procedure would be followed. I find

that Mr. Carey was completely out of his depth and was unable to answer the

relevant questions raised by Mr. Probert as to the consultation period and

potential implications of TUPE. It is unsurprising that both the Claimant and Mr.

Probert left the meeting being unclear as to the status of the Claimant going

forward in the business. Mr. Carey did place the Claimant on garden leave and

state that only two weeks would be used for the consultation period. I regret to

say that this was rather more to do with Mr. Carey’s lack of knowledge of

appropriate employment relations process than of any pre-determined decision

to dispense with the Claimant. His enquiries to the HR professional in

December 2016 as to the procedure to be applied had not been answered by

Ms. Riddell by the time of the meeting on 4th January 2017 and he was

uncertain about what to do.

62. However, the Tribunal finds that by the letter dated 9th January 2017 detailed

information was provided to the Claimant about the factual context of her

potential redundancy; confirmation of the meaning of garden leave and the

Claimant’s obligations; the process to be followed going forward. She was also

provided with a link of current vacancies and that training for a new a vacant

post may be possible.

63. I also accept that the Respondent did take reasonable steps to clarify whether

TUPE applied. This would be to the benefit of the Claimant and the

Respondent. By his letter dated 16th January 2017 Mr. Quinlan informed the

steps being taken to clarify the TUPE position and this was followed up by Ms.

Riddell in her communications with Williams Lea and the legal advisers.

64. I reject the submission that the Claimant should have been permitted to meet

with Giles Deacon as a means of securing the future contract with the


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Respondent. The Claimant has the status of an employee with the Respondent;

the Respondent contracts with the client Williams Lea who in turn contracts with

the MOD. The client, Williams Lea had told the Respondent it did not want the

Claimant to meet with Giles Deacon and it was therefore reasonable of the

Respondent to inform the Claimant of this fact and would have been most

unusual for an employee in the Claimant’s position to conduct negotiations with

Giles Deacon. This part of the process cannot be criticised.

65. From the letter dated 9th January 2017 I am satisfied that the Claimant was

provided with full information as and when the Respondent obtained updates in

respect of TUPE. Despite the procedural deficiencies of the meeting dated 4th

January 2017 the Tribunal’s judgment is that the process going forward

provided to the Claimant reasonable consultation about the process. This also

included details about vacancies.

66. I find the Claimant to be an intelligent, competent and articulate professional.

She understood available posts could be sought via the weblink detailed in the

letter dated 9th January 2017. She did not directly apply for any. At the meeting

on 25th January 2017 in fact Ms. Riddell gave her copies of the job vacancies.

The Californian post which the Claimant expressed an interest in had sadly

been filled. In respect of the other post of Business Development Manager at

Defence Support her enquiry about relocation cost dated 26th January 2017; it

was clarified that there was no relocation package. The Claimant made a

further enquiry about the need for training for the role in her email dated 3rd

February 2017. This pre-dated the letter from the Respondent dated 5th

February 2017 which invited the Claimant to contact Richard Bradley about her

interest. She did not do so. In fact her response dated 9th February 2017 was

critical of the Respondent’s disrespectful treatment and sought a negotiated

settlement. Ms. Riddell’s response dated 10th February 2017 made clear to the

Claimant that training may be available. The Claimant did not apply for the role

nevertheless. The Tribunal is satisfied that the Claimant had been made aware

of job vacancies; where she could find them via a web link and provided with

hard copies. She did not take the step of applying for the Business

Development Manager post.


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67. By 24th March 2017 three months following notice being given to the

Respondent on the CODEX contract, there were no other available posts and

the Claimant had not applied for any vacancies. The Respondent is not under

any duty to create a role for an employee. The Tribunal reaches the conclusion

that the consultation and search for alternative work for the Claimant was

reasonable.

68. The Tribunal’s role is not to substitute its view for the Respondent’s but to

consider taking into account the circumstances of the case including the

Respondent’s size administrative resources did the Respondent act reasonably

or unreasonably in treating redundancy as sufficient reason for dismissing the

Claimant. The Tribunal concludes that the Claimant was carrying out highly

specialised work for the MOD via the client Williams Lea. It was reasonable for

the Respondent to place the Claimant into a pool of one when the CODEX

contract was terminated. The Respondent did take steps to inform and consult

with the Claimant via email correspondence and meetings. I do consider it to

have been reasonable to keep continuity in the consultation process which

meant unfortunately that the Claimant’s companion was unable to make other

consultation meetings. The Claimant was given the opportunity to bring another

companion but she declined. I do not consider the refusal to move meetings to

have been a sinister motive by the Respondent.

69. Despite the deficiencies identified at the start of the process on 4th January

2017 identified by Mr. Probert, these were remedied by letter dated 9th January

2017 and the involvement of Ms. Riddell. Conscious efforts were made by the

Respondent to keep the Claimant informed; meet with her; and clarify the TUPE

position.

70. The Claimant was made aware of potential vacancies but did not apply for them

which she confirmed at the appeal hearing on 7th April 2017.

71. The Tribunal concludes in all the circumstances that the Respondent’s decision

to dismiss the Claimant was a fair one and lawful within the meaning of section

98(2)(c) of the Employment Rights Act 1996.


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72. Further it has been submitted the Respondent’s procedures were in breach of

the ACAS code. Redundancies are specifically excluded from the application of

the ACAS code : Discipline and Grievances at Work . This submission is

therefore rejected.

73. The remedy hearing listed for 14th March 2018 is hereby vacated.

Employment Judge Wedderspoon Dated: 7 December 2017

1800978.17 j & r · 2018. 1. 29. · case number: 1800978/2017 6 14. following the meeting, on...

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